A Chill in the Air…

When we train managers and supervisors, we spend some time talking about the importance of preserving and protecting employees’ right to engage in the EEO complaint process. In this case from EEOC’s 1st quarter Digest of Equal Employment Opportunity Law, a supervisor’s comments about the complainant’s EEO activity resulted in a finding of retaliation. EEOC reminds us that any conduct that is designed to intimidate and/or interfere with the complainant’s EEO activity or deter employees from exercising their EEO right can result in a finding of discrimination. In other words, supervisors must be careful not to say anything that would have a chilling effect on employees accessing the EEO complaint process.

Here is a summary of the decision…

Complainant filed an EEO complaint alleging, among other things, that his supervisor made remarks about his EEO activity. On appeal, the Commission found that the supervisor’s actions constituted retaliation. Complainant engaged in protected EEO activity when he contacted an EEO counselor, and the supervisor was aware of that activity. The supervisor then contacted Complainant and made a number of comments about Complainant’s EEO activity including that an email he received regarding the matter was “weighing on [his] mind.” The supervisor acknowledged asking Complainant why he had filed when he did and stating Complainant “pulled the trigger too soon.” The supervisor also stated that the EEO process was probably “not the most enjoyable path for anyone involved.” Further, he appeared to offer Complainant an incentive for withdrawing from the EEO process, by telling him that, if rumors of changes in management occurred and he had a good evaluation in hand, he, the supervisor, would have another conversation with senior management about a position for Complainant. The Commission found that the supervisor engaged in conduct that was designed to intimidate and/or interfere with Complainant’s EEO activity, and the supervisor’s comments would be reasonably likely to deter employees from exercising their EEO rights. The Commission affirmed the Agency’s finding of no discrimination regarding the remaining allegations in the complaint. The Agency was ordered, among other things, to investigate Complainant’s claim for damages, and provide training to the supervisor. Octavio C. v. Dep’t of the Interior, EEOC Appeal No. 0120150460 (Aug. 16, 2017).